Application of the Doctrine of In Pari Delicto
Albert v. Sheeley’s Drug Store, Inc., 234 A.3d 820 (Pa. Super. 2020), allocatur granted Jan. 25, 2021, appeal docket 5 MAP 2021
In the months leading up to Cody Albert’s death, he and Zachary Ross, Cody’s friend of a few years, “frequently ingested OxyContin and marijuana.” Slip op. at 2. On March 11, 2016, Cody told Ross that he was experiencing withdrawal symptoms from opiates. Over the next few days, the pair texted about finding a way to obtain illicit drugs.
Ross’s mother had a prescription for fentanyl at Sheeley’s Drug Store in Scranton. Ross, pretending to be his mother, called the pharmacy to place an order for the fentanyl. On the evening of March 17, 2016, Ross and Cody texted about getting to the pharmacy before its closing time so that they could obtain the fentanyl. Cody drove Ross to the pharmacy and waited in the car as Ross went inside and obtained the fentanyl. The pair then drove to Ross’s house, where Cody ingested the fentanyl, fell asleep on the couch, and died, despite Ross’s attempts to wake him.
Dale Albert, acting individually and as the administrator of his son’s estate, filed suit in the Lackawanna County Court of Common Pleas against Sheeley’s Drug Store, alleging negligence, wrongful death, and a survival action. Sheeley’s Drug Store moved for summary judgment, which the trial court granted, citing the in pari delicto doctrine. Dale Albert appealed to the Superior Court, which examined the doctrine in its review:
The in pari delicto defense applies when the plaintiff is “an active, voluntary participant in the wrongful conduct or transaction(s) for which [he] seeks redress” and “bear[s] substantially equal or greater responsibility for the underlying illegality as compared to the defendant.” Official Committee of Unsecured Creditors of Allegheny Health Educ. and Research Foundation v. PriceWaterhouseCoopers, LLP, 605 Pa. 269 (2010). This common law doctrine “is an application of the principle that no court will lend its aid to a man who grounds his actions upon an immoral or illegal act.” Joyce v. Erie Ins. Exchange, 74 A.3d 157, 162 (Pa. Super. 2013).
Slip op. at 4-5 (cleaned up).
Dale Albert argued to the Superior Court that the doctrine does not apply to the facts of the case because Cody did not engage in immoral or illegal conduct. Specifically, Dale argued that Cody’s ingestion of a controlled substance was not illegal and that he played no role in the fraud Ross committed upon Sheeley’s Drug Store. The Superior Court disagreed, explaining that (1) Ross and Cody communicated about the need to get to Sheeley’s before it closed in order to commit the fraud and (2) that Cody drove Ross to the store to facilitate the scheme. Additionally, when Cody possessed the illegal fentanyl, he violated the Pennsylvania Controlled Substance, Drug, Device and Cosmetic Act, which, inter alia, prohibits the unauthorized possession of fentanyl.
The Superior Court explained that the Pennsylvania courts have applied the in pari delicto doctrine in tort actions, but that it was unaware of such an application in a case involving the use of ill-gotten drugs from a pharmacy. However, the Court cited seven examples of the doctrine being applied in other jurisdictions to facts that are like those in this case.
With the facts and case law in mind, the Superior Court affirmed the trial court’s grant of summary judgment under the doctrine of in pari delicto:
By participating in the scheme to obtain the Fentanyl, and by illegally possessing the Fentanyl at Ross’s house in violation of 35 P.S. § 780-113(a)(16), the Decedent was “an active, voluntary participant in the wrongful conduct or transaction(s) for which [Appellant] seeks redress” and “bear[s] substantially equal or greater responsibility for the underlying illegality as compared to [Sheeley’s].”
Slip op. at 8-9 (internal citations omitted).
The Pennsylvania Supreme Court granted allocatur in this case to consider two questions:
(1) Did the Superior Court err in finding that Plaintiff’s claim was barred under the in pari delicto doctrine, where there is no evidence in the record that the decedent participated in the scheme to procure the prescription drugs illegally?
(2) Did the Superior Court improperly expand the doctrine of in pari delicto to preclude Plaintiff’s recovery simply because Decedent was in possession of a controlled substance that was not his?